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People v. Burton





APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES K. ROBINSON, Judge, presiding.


Aggravated incest with both stepdaughters — starting at age five!

Can the wife testify to the stepfather's admissions of his acts against the two girls?

Yes — no privileged communication where the interests of the children are involved.

The jury verdict of guilty and the sentence of 6 years are affirmed.

Burton resided with his wife and their sons, T'Challa and A-Jay. Also living in the home were his wife's two daughters by a prior marriage. Burton was convicted of committing aggravated incest with the stepdaughters, who were ages eight and nine at the time of trial in March 1981.

The nine-year-old testified that on the evening before the family left for its vacation in August 1980, her mother went to the laundromat and left her, defendant stepfather, and T'Challa at home. As she was trying on a new swimsuit that had been purchased for the vacation, defendant came into her room. After removing the swimsuit, she began to put on her pajamas, but defendant told her not to do so. He ordered T'Challa to go outside and went to another room to obtain a towel. He then proceeded to lie on top of her and have sexual intercourse with her. The girl stated that when defendant got up, he used the towel to wipe "yellow stuff" from the bed and from her vagina.

The girl also testified that this type of occurrence had taken place before and had been going on for four or five years. She was unable to estimate the number of times defendant had had intercourse with her during that period.

The eight-year-old testified that about a week before the family's August vacation, she, defendant, and A-Jay were at home while her mother was doing laundry. During the evening, defendant got on top of her and "put his penis in [her] vagina in the red part." After he got up, she went to the bathroom and defendant wiped her off with a wet towel.

To the prosecutor's question whether defendant had had intercourse with her before, the eight-year-old said, "I don't remember it, but it happened before." She did not know how long ago defendant had begun such activity with her.

Defendant's wife testified that she and her four children are now living with her mother in Pennsylvania. She stated that the family's vacation had been spent in South Bend, Indiana, where they visited their former pastor and his family, and during the vacation the girls told their mother about defendant's sexual activity with them. When she asked defendant about it, he at first denied the accusations and "wanted to whip them." The mother, however, insisted that they talk to the girls first. When the girls repeated the same allegations in the presence of defendant and their mother, defendant asked his wife to go with him to another room. He there admitted to her that the girls were telling the truth.

William Patrick Hartshorn, of the Vermilion County sheriff's office, testified that he had requested defendant to come in for questioning concerning an allegation of aggravated incest. Defendant told Hartshorn that in 1977 he had begun lying in bed with the nine-year-old (then age five), holding and fondling her and rubbing her legs with his hands. In early 1978 he began fondling her genital area and inserting his finger in her vagina, and in late 1978 he began to have sexual intercourse with her.

In 1979 he began having intercourse with the eight-year-old. Defendant estimated that during 1979 and the first part of 1980, he had intercourse with the girls 10 to 12 times. In particular he described an incident which occurred in July 1980, while his wife was at the laundromat, leaving him at home with the eight-year-old. He had sexual intercourse with her by having her get on top of him and then inserting his penis in her vagina. Following his climax, he took the girl to the bathroom and cleaned her up. He told the girl he had done wrong and encouraged her to tell her mother so that he would be stopped from doing it in the future.

Testimony of Officer James Gooden, who was present during the interview with defendant, largely corroborated Hartshorn's testimony. He added that defendant had attempted to have intercourse with the nine-year-old in ...

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